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SETTLING A BAR COMPLAINT MAY LEAD TO A BAR COMPLAINT

Most lawyers have faced circumstances in which a client representation did not end well.  In those cases, it is not unusual that the lawyer’s bill for services may remain unpaid for several months.  Invariably, the client will eventually terminate the lawyer. Depending upon the length of the representation and the amount in dispute, the lawyer may file a charging lien and/or sue the client for the unpaid fees. If suit is filed, the client will likely countersue the lawyer for legal malpractice and file, or threaten to file, a professional ethics complaint against the lawyer.   In many cases, after a fair amount of negotiations, the client and lawyer reach a financial settlement.   Under the terms of the settlement, the lawyer typically recovers some, but not all, of the outstanding fees that are owed, and the parties exchange general releases.  The terms of the release might also release the lawyer from any claims for legal malpractice, as well as any claims for potential disciplinary/ethical violations that may have arisen from the representation.

In Florida, a lawyer may not enter into an agreement with a client conditioned upon the client agreeing to not file a disciplinary complaint against the lawyer or, if a complaint has been filed, to withdraw the complaint. That prohibition is not expressly stated in The Rules Regulating The Florida Bar.[1] Rather, it has been developed through precedent established by the Florida Supreme Court’s interpretation of Rule 4-8.4(d) of The Rules Regulating The Florida Bar, which provides that lawyers shall not “engage in conduct in connection with the practice of law that is prejudicial to the administration of justice . . . .”  The Florida Supreme Court has held that an attorney’s efforts to “preemptively thwart the Bar’s disciplinary involvement in [a] case” “prejudices our system of justice as a whole.” Hence, any such agreements purporting to release lawyers from liability for potential disciplinary violations are not enforceable. The Florida Bar v. Frederick, 756 So. 2d 79 (Fla. 2000); The Florida Bar v. Fitzgerald, 541 So. 2d 602 (Fla. 1989).  The prohibition is absolute and applies even if the client is represented by independent counsel.

The prohibition against settling disciplinary complaints, which is inflexible, should be contrasted with Rule 4-1.8(h) of The Rules Regulating The Florida Bar, which does permit lawyers to enter into agreements to settle claims for professional malpractice.  Specifically, Rule 4-1.8(h) states that “[a] lawyer is prohibited from settling a claim for liability for malpractice with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in making the agreement.”  Thus, settling a malpractice claim is perfectly legal and appropriate when done in accordance with Rule 4-1.8(h).  However, settling even a frivolous bar complaint may subject the lawyer to an ethical violation.

[1] In contrast, some states have specific rules that prohibit that practice.  For instance, under the Connecticut Rules of Professional Conduct, “[a] lawyer may not condition settlement of a civil dispute involving allegations of improprieties on the part of a lawyer on an agreement that the subject misconduct not be reported to the appropriate disciplinary authority.”

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    Lanse Scriven

    "Our service should not be in expectation of acclaim. Our true reward is the service itself."

    Lansing C. Scriven Excerpted from the Lawyer magazine, October 2005.

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